Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

150 | PRACTITIONERS GUIDE No. 6CHAPTER 3: EXPULSION PROCEDURESThis Chapter considers the procedural protection afforded by internationalhuman rights law to persons threatened with expulsion. Thesestandards have become particularly significant in recent years, as morecountries introduce expedited or simplified expulsion procedures whichmay undermine procedural safeguards normally available under nationallaw. They often provide insufficient time for migrants to prepare theircase, and allow only for non-suspensive appeals of decisions to expel,meaning that the decision can only be challenged after the expulsionhas taken place. An additional and growing concern in recent years hasbeen the use of special procedures in expulsion cases where issues ofnational security arise, allowing insufficient disclosure or limiting judicialscrutiny of the reasons for expulsion. Human rights obligationsplace constraints on the application of all such special procedures.Human rights procedural guarantees in expulsion vary as between internationaland regional human rights bodies, in contrast to the universallystrong and relatively consistent protections of substantive human rightsin expulsion, considered in Chapter 2. This Chapter, after consideringthe international law definition of expulsion, addresses the safeguardsthat international human rights law attaches to all expulsion procedures,irrespective of the substantive rights engaged. It then analysesthe procedural guarantees linked to the right to a remedy, and, finally,procedural rights under the Geneva Refugee Convention.I. When is someone “expelled”?The notion of expulsion in international law “is an autonomous conceptwhich is independent of any definition contained in domestic legislation[. . .]. With the exception of extradition, any measure compellingan alien’s departure from the territory where he was lawfully residentconstitutes an “expulsion”. 495 Expulsion includes rejection at the border,withdrawal of the visa of a lawful resident who seeks re-entry to his orher country of residence, 496 and any other form of transfer, deportation,removal, exclusion, or return. Extradition proceedings, which are oftencovered by specific provisions contained in multilateral and bilateral extraditionagreements, and may concern nationals as well as non-nation-495 Nolan and K. v. Russia, op. cit., fn. 472, para. 112. See also, Bolat v. Russia, ECtHR, ApplicationNo. 14139/03, Judgment of 5 October 2006, para. 79. The Human Rights Committeealso includes as expulsions “all procedures aimed at the obligatory departure of analien, whether described in national law as expulsion or otherwise”, CCPR, General CommentNo. 15, op. cit., fn. 30, para. 9. See also, Explanatory Report to Protocol 7 to the Conventionfor the Protection of Human Rights and Fundamental Freedoms, ETS No. 117, para. 10.496 Ibid.